from the And-you-wonder-why-things-are-going-poorly dept

So for several years now consumers have faced a growing number of obnoxious retransmission blackouts, which occur when broadcasters and cable providers can't agree on new programming contracts. Such feuds usually go something like this: a broadcaster will demand a fairly obnoxious price hike for the same content, to which the cable provider (already awash in complaints about higher rates) will balk. Instead of negotiating their differences like adults, this content is subsequently blacked out for paying customers, who never see refunds for the inconvenience.

Instead, customers are effectively used as public relations pinatas, as each side tries to get the customer angry at the other guy. After a few weeks of blacked out content, annoying on-screen tickers urging users to call in and complain, and public sniping, a new confidential deal is struck, and the higher rates are then passed on to the consumer. It's a habitual dance of dysfunction that has continued despite the fact that the industry is losing more and more customers every year due to unsustainable rate hikes, horrible customer service, and the rise in streaming video competition.

This week, 3 million Dish customers lost access to 28 CBS-owned local stations in 18 markets because Dish Network and CBS executives couldn't agree on a new contract without penalizing paying subscribers. This latest blackout comes just days before CBS is scheduled to air the latest Thanksgiving NFL game between the Los Angeles Chargers and the Dallas Cowboys, something CBS knows full well will help generate the maximum public backlash:

"CBS, in a statement, warned that “Dish subscribers are in jeopardy of being without CBS over the Thanksgiving holiday, which would mean they would miss CBS Sports’ NFL and SEC football coverage."

CBS is set to broadcast the NFL matchup between the Chargers and the Dallas Cowboys on Thanksgiving.

“I am very upset. Why does the customer always have to suffer in these situations?” asked Jerry Horn, a Dish customer in Narrowsburg, N.Y. “We pay the bills. … Keep us connected during contract disputes!"

Dish, for its part, announced that it's offering users a free over the air antenna so customers can watch the game. The company's also offering users the chance to ditch all local broadcast channels in exchange for a $10 reduction in their monthly bills. And while Dish isn't faultless in these feuds, they're correct in noting that CBS seems to think it deserves more and more money despite fewer and fewer users actually tuning in to traditional broadcasts:

"On a recent investor conference call, CBS boasted about the rate increases promised to shareholders, going from $250 million in 2012 to a forecasted $2.5 billion by 2020. Those desired increases come as DISH customers are watching less CBS, with average viewership down 20 percent over the past 3 years."

The FCC has occasionally flirted with the idea of banning cable companies and broadcasters from blacking out content during content disputes, but nothing much comes of it -- as this kind of anti-consumer behavior is generally seen as "boys being boys," and outside the purview of regulatory oversight. And the cable and broadcast industry is perpetually unwilling to change its behavior, only accelerating the slow but steady exodus of subscribers from bloated cable bundles -- to either streaming alternatives like Hulu, Amazon and Netflix -- or piracy. Stellar work all around, boys.

from the whoops-a-daisy dept

Showtime's websites recently began covertly hijacking user browsers to mine cryptocurrency, and neither Showtime nor its parent company CBS appear interested in explaining how or why it happened. The code in question -- a bit of JavaScript dubbed Coinhive, was embedded in two different Showtime domains: Showtime.com and Showtimeanytime.com. When a visitor visited these domains, their browser was hijacked and their computer was forced to help mine Monero, a new privacy-centric alternative to bitcoin currently valued at around $92 each.

Users weren't alerted that this was happening, and visitors reportedly found the mining software utilized up to 80% of a visiting user's CPU cycles. Such miners can also notably drain battery life for visitors on mobile devices. And as of this writing, Showtime has been completely unwilling to confirm that this occurred, much less explain how the code appeared. The company has refused to respond to numerous requests for comment from a myriad of websites, Techdirt included. The code appeared in the evening of September 23, and had disappeared by the next Monday morning.

It seems relatively unlikely that executives or developers at Showtime thought it would be a good idea to hijack the browsers of potential customers to mine cryptocurrency, leading many to believe that Showtime's servers were likely hacked by somebody looking to covertly make a little extra money:

"The JavaScript, which appeared on the sites at the start of the weekend and vanished by Monday, sits between HTML comment tags that appear to be an insert from web analytics biz New Relic. Again, it is unlikely that an analytics company would deliberately stash coin-mining scripts onto its customers' pages, so the code must have come from another source – or was injected by miscreants who had compromised Showtime's systems."

That said, it's not impossible that Showtime was running an experiment. Cryptocurrency miners have been making headlines in recent weeks after The Pirate Bay was caught also covertly using Coinhive to hijack visitor browsers to make extra bank. Coinhive only just launched September 14, advertising itself as a creative alternative to the traditional advertising model. But after users over at the Pirate Bay subreddit discovered the practice and began to complain, the website was forced to pull the software from its code and issued a relatively flimsy mea culpa:

"As you may have noticed we are testing a Monero javascript miner. This is only a test. We really want to get rid of all the ads. But we also need enough money to keep the site running."

Except covertly hijacking a browser with glorified malware obviously isn't a great way of "keeping a site running," especially if websites running to embrace Coinhive refuse to let users opt out -- much less inform them this is even happening. Not surprisingly, the recent rise in such stealth cryptocurrency miners has resulted in Adblock Plus moving to help block such hijacks. Malwarebytes analyst Jérôme Segura warns in a blog post that some websites appear unsurprisingly intent on "pushing the limits towards a really bad user experience":

"Gaming and video sites typically are more resource intensive, so it seems to make little sense to run a miner at the same time without having a noted impact. Having said that, many people who consume copyrighted content are perhaps less likely to complain about an under par user experience. The question at this point is: How far can publishers push the limits towards a really bad user experience? You may be surprised that for many, this is not really a problem at all and that double dipping is, in fact, a fairly common practice."

Again, there are creative alternatives to advertising, and then there's just being an asshole. Hijacking a visitor's browser, CPU and electricity to mine cryptocurrency without informing them -- or letting them opt out -- sits firmly in the latter category.

from the full-circle dept

On one hand, the growing number of streaming services has been a boon for users looking for a less expensive, more flexible alternative to the bloated cable bundle. On the flip side, as a growing number of streaming services emerge and broadcasters begin launching their own services to bypass the middleman (Amazon, Apple, Netflix), we're seeing a rush toward more and more exclusive content deals. Forcing the consumer to hunt and peck through an ocean of ever-shifting licensing windows is already confusing, but siloing content across numerous, cumulatively-pricey services also risks driving consumers back to piracy.

Case in point: CBS recently launched its own streaming platform: CBS All Access. The service, which costs $6/month with ads and $10/month without, provides access to CBS' full roster of shows, but saw fairly tepid growth initially. But CBS recently announced that the new Trek series, "Star Trek: Discovery" will be exclusively available early to members of the service moving forward. This move did, rather unsurprisingly, result in a single day sign up record for the service, at least according to CBS:

"Tonight’s premiere of Star Trek: Discovery on CBS All Access drove a record number of single day signups at CBS’ digital streaming subscription service. No specific numbers were reported, but the network claims today’s stats outstrip the previous record spurred by the 2017 Grammy Awards in February."

And while that's all well and good for CBS, many consumers already subscribe to numerous streaming platforms, and may find shelling out another $6 to $10 a month just to catch one show a poor value proposition. As a result, fairly non-surprisingly, the new Trek series wound up being heavily pirated on BitTorrent networks (and that was with the first two episodes being aired on broadcast before the real exclusivity period kicks in):

"While the premiere of Discovery was broadcast on CBS' free over-the-air network, later episodes in the first season will be offered exclusively on CBS' streaming video service. CBS hopes this will help the network build CBS All Access into a top-tier streaming service. But there's a risk that it will simply encourage more people to pirate CBS' flagship show—especially since some users who signed up for the service have been reporting reliability problems on social media."

Over time, CBS may feel it makes sense to pull all of its content and programs off of widely available existing services and central repositories, locking them behind their own exclusivity paywall. That's effectively what Disney just announced; the company will be pulling all of its content from Netflix so it can offer Pixar, Star Wars and other popular titles exclusively through its own platform. Comcast NBC Universal similarly decided to pull all NBC content from Netflix to house it exclusively on Comcast owned Hulu. Begun, the streaming exclusivity wars have.

Many executives will proudly believe that this kind of direct to consumer offering only makes sense. And for outfits like ESPN that were blindsided by cord cutting the logic makes sense to some degree. But in forcing consumers to sign up to too many disparate services (at $6 to $20 each) just to get the content they're looking for, there's a real risk that millions of consumers will once again find piracy the simpler, less expensive option. A shame after the better part of a decade it took to drive users to these alternative, "legitimate" options.

Many broadcast executives are the type to subsequently learn few if any any lessons from this likely spike in piracy, and will likely lament how they "gave consumers what they wanted and they still pirated content anyway." To be clear the rise in streaming alternatives is a good thing, but the same hard lessons being learned by the legacy cable sector still apply here: users are looking for simplicity and value, and by forcing users to sign up to more than a dozen fractured services just to get the content they want, the industry risks providing neither.

from the took-'em-long-enough dept

A little over a year ago, we first wrote about the unfortunate situation in which CBS & Paramount had sued a group of people trying to make a fan film in the Star Trek universe, called Axanar. Beyond the basic legal questions, there was a bigger issue here. Paramount has actually been pretty good about allowing fan films. The difference with Axanar was that it was shaping up to be a really good fan film, with professional level actors, sets and staff. And that was what set off Paramount and CBS, who jointly hold the copyrights on Star Trek. The big question then is what's the line between a fan film... and an unauthorized derivative work? This wasn't necessarily a question in the past, but today with the ease of making films (and funding them through platforms like Kickstarter), it becomes a much bigger question.

Something of a wrench was thrown into the proceedings last May, when JJ Abrams and Justin Lin -- who are involved in the official new Star Trek films -- claimed on stage that they were quite upset with Paramount for going after Axanar, and claimed that they'd gotten word from the company that it was going to settle the lawsuit. Of course, in the intervening months, no settlement showed up, and the filings back and forth between the parties got more and more rancorous. Things were finally heading towards a trial in just a few days... but now a settlement has finally been reached.

Paramount Pictures Corporation, CBS Studios Inc., Axanar Productions, Inc. and Alec Peters are pleased to announce that the litigation regarding Axanar’s film Prelude to Axanar and its proposed film Axanar has been resolved. Axanar and Mr. Peters acknowledge that both films were not approved by Paramount or CBS, and that both works crossed boundaries acceptable to CBS and Paramount relating to copyright law.

That last bit is the most interesting, but not very surprising. Just before the trial, the judge in the case had ruled against Axanar, saying that they couldn't claim fair use -- which basically killed any shot they had of winning. So, with their back up against the wall, the best they could do was to come to a settlement admitting they'd gone too far and agreeing to make significant changes to the planned film:

Axanar and Mr. Peters have agreed to make substantial changes to Axanar to resolve this litigation, and have also assured the copyright holders that any future Star Trek fan films produced by Axanar or Mr. Peters will be in accordance with the 'Guidelines for Fan Films' distributed by CBS and Paramount in June 2016.

While not surprising, this is unfortunate on multiple levels. First, we wrote about those "Guidelines for Fan Films" when they came out: they're awful. They basically make it close to impossible to make a decent fan film. Even worse, many of the conditions in the guidelines go directly against what's allowed under fair use.

But the reason this is most unfortunate is this: the world will now never get to see what might have been a really good film. I know that some people like to attack Techdirt and me and claim that we're somehow "anti-creator" or "anti-artist" but we're not. We believe strongly in creators and enabling the best creativity possible -- and this kind of lawsuit shuts that down. It directly kills off plans to produce what appeared to be really good content. That's a cultural loss and it's too bad. The existence of Axanar doesn't take anything away from "real" or "authorized" Star Trek films with their huge budgets, special effects and stamp of authenticity from the studios. But thanks to this lawsuit, such creative content will no longer be made. And that's sad.

from the or-something-like-that dept

Okay fine, CBS hasn't sued "the public domain" — but at this point I suspect that's only because they haven't figured out how to do so. In the mean time, they're suing a YouTube channel for copyright infringement after it posted sixteen public domain episodes of the Andy Griffith show. How, you ask? Isn't the public domain the, uh, public domain? Apparently not if you get creative with your lawsuit:

The episodes at issue in the suit fell into the public domain in the '90s because the copyright-renewal application was rejected for being filed too late and, according to the suit, that's one of the reasons Heldman thinks his posting them was legitimate.

... CBS attorney Jonathan Zavin argues that, because CBS holds valid and existing copyrights for the first 79 episodes of the series, the "copyrighted characters and numerous other original creative elements" that appeared in those episodes would still be protected in the middle episodes.

"Accordingly, the newly-added elements, and only the newly-added elements, of these Middle Episodes which did not previously appear in the first 79 episodes of The Andy Griffith Show (which remain protected by statutory copyright) have fallen into the public domain in the United States," he writes.

This is of course not the first time we've seen such an attempt to nibble (or chomp) away at the edges of the public domain. Other examples include the high-profile fight over Sherlock Holmes, and the recent loss over Wizard Of Oz promotional materials. But each is subtly different, and together they form a trifecta that snuffs out giant swathes of the public domain.

In the case of Sherlock Holmes, we've got the rule that early works falling into the public domain can be freely used, but if you're building on them or adapting them, you can't incorporate character traits or story points from later works that are still under copyright. While this still raises a huge host of "perpetual copyright" concerns, at its core it seems... somewhat reasonable. The Wizard Of Oz situation is similar, stemming from the idea that just because some materials from the film have fallen into the public domain doesn't mean everything else is fair game. But, it pushed the borders: the court didn't simply say that building on the public domain material with other still-copyrighted material from the film becomes infringing, but that building on it with anything or changing it in any way makes it infringing.

Those two rulings already represent pretty big victories for public domain haters, but you'll notice they are missing something. In both cases the courts, despite constraining the public domain in extreme ways, had to concede that just directly publishing the unaltered public domain material itself — the early Holmes stories, or the unregistered publicity materials from Oz — is not infringing. How could it be? They are public domain.

So along comes this new lawsuit, attempting to put another nail in the coffin. The episodes posted on YouTube weren't somehow expanded to draw upon material from other episodes, or for that matter from anywhere else. They were public domain material being posted in full online. And now CBS wants the court to say that's infringing because other episodes of the show are still under copyright, and that even though these 16 are in the public domain, they still count as derivative works of previous episodes. So, magically, posting public domain material to YouTube — something that should be completely and inarguably legal — becomes unauthorized distribution of a derivative work.

It gets crazier, too. You might think CBS would be satisfied pushing this theory on the basis that the episodes infringe on the very first episode, or perhaps a select handful that establish recurring characters and themes. Nope! The lawsuit claims that the 16 public domain episodes are derivative works of each of the 79 still-copyrighted episodes, individually. They are asking for nearly $12-million dollars — the maximum statutory damages per work infringed, multiplied by all 79 episodes.

Let that sink in.

And so once again we see the utter collapse of the idea/expression dichotomy. Copyright is supposed to apply to the fixed expression of an idea — such as each individual episode of a show, and the scripts and other materials underlying it. But if we slide the dividing line over a bit and say that "the character of Andy Griffith" or "the town of Mayberry" count as fixed expressions, then we have an absurd situation where basically nothing related to the show can be public domain until everything is (a day or two before forever, most likely). If we slide it further and say that one expression of those ideas can infringe on every single other expression of them individually, then I don't even have the words for how broken the system has become. It's a perversion of the entire idea of the public domain, and an utter betrayal of the already-lopsided contract that is copyright.

With any luck, the judge will reject this nonsense. So far, despite being pretty cooperative with the demands of rightsholders, courts have stopped short of saying "you cannot publish that public domain material at all", because even the most copyright-friendly judge seems to recognize that's a bridge too far. But even if CBS doesn't get all their wishes, I won't be surprised if the eventual ruling continues to chip away at the public domain, delineating new restrictions that have no reason to exist or planting landmines of legal language that will be unwittingly detonated by some future public domain miner.

But hey that's all secondary — the important thing is making sure nobody gets to watch sixteen episodes of a half-century-old TV show for free, right?

from the trash-talking dept

It's always the people neck deep in partisanship that make the most noise about unfairness. In a move that bodes well for free speech, Rep. Kevin Cramer is calling for hearings to sort out this "problem" with "biased" media. Cramer also spent some time as Donald Trump's energy advisor, so it's a good guess he feels his candidate hasn't been treated fairly by The Liberal Media™ -- an entity that's always useful for easy scapegoating when things go south for candidates, legislation, etc. on the Republican side. (The liberals/left do the same when stuff goes wrong for them. Everyone does it. The only difference is the scapegoat.)

Rep. Kevin Cramer (R-N.D.) sent a letter to the heads of the four "major" TV networks—CBS, NBC, ABC, and Fox—threatening to hold a hearing "to explore network media bias in coverage of the 2016 presidential campaign." To justify this grandstanding and overreaching display of concerned government, Cramer cites a recent Gallup poll which put Americans trust in "media" at around 32 percent and also asserted only 37 percent of Americans think the media's coverage of the 2016 campaign has been "balanced."

Cramer's biases are clear, but he seems blissfully unaware of them. Presumably Fox is being added to this hearing's lineup for the same reason criminal informants get swept up during law enforcement raids -- to prevent any suspicion arising from its exclusion. While Cramer cited the Gallup poll, he also added in more feelings of his own, stating the media (both sides, I guess) is engaged in "surreptitious propaganda" which somehow violates its "moral" duty to inform the public without taking sides.

Rather than allow adults to address the open question of "moral" obligations, Cramer has issued threats with the weight of the federal government behind them. He brought up the Fairness Doctrine, only to drop it moments later, stating that a "free system" is only possible with unbiased media.

Media bias is something universally hated, but it's never not a partisan issue. Everyone agrees bias -- at least too much of it -- is bad. Those wanting to see it gone usually just want the other side to change, not the ones that confirm their world view. Rep. Cramer is no different, and seeing as he has somewhat of a vested interest in Trump's success, his official offendedness is incredibly suspect.

Hearings aren't the only thing Cramer threatened. He also hinted he would start pulling FCC licenses if things didn't change while implying that the First Amendment is mostly for protecting speech he likes.

So instead of wielding the Fairness Doctrine as a means of forcing the networks to rid themselves of all political bias (which would be impossible to quantify, not least because bias is in the eye of the beholder), Cramer threatens their "the use of federally-allocated spectrum" afforded by their FCC licenses, writing "Your FCC license and the liberty that comes with your First Amendment rights are not a license to broadcast anything you want or in any way you choose."

That's an odd interpretation of the First Amendment. There are very few modes of expression that aren't protected by it and "always running down my guy" isn't one of those exceptions. Not that it matters. As Reason's Anthony Fisher points out, Cramer's more angry than informed.

Cramer appears to have not read the FCC's website, which explicitly states (emphasis theirs), "We license only individual broadcast stations. We do not license TV or radio networks (such as CBS, NBC, ABC or Fox) or other organizations with which stations have relationships (such as PBS or NPR), except to the extent that those entities may also be station licensees."

[...]

Though Cramer might want to use the FCC as his own task force, the FCC's website also states the commission "cannot prevent the broadcast of any particular point of view. In this regard, the Commission has observed that 'the public interest is best served by permitting free expression of views."

So, the FCC won't be doing any of the things Cramer imagines he can make it do, and any attempt to force the issue would look exactly like what it is: an attack on free speech disguised as a call for "fairness."

Bias will always exist in the media. That's because humans are biased creatures and some of it bleeds over into the profession, no matter how much they might aspire to loftier ideals. And, of course, there are always those who don't even aspire to these ideals and wallow in fully-biased reporting.

But it's not as if dragging down the Big Four to Cramer's level would have much of an impact immediately, much less a lasting one. Only a small minority of Americans get their news exclusively from these outlets. Many more get them from a variety of other sources, all with their own preferences and biases. And humans, being humans, tend to be drawn to viewpoints that agree with their own. Hollering about FCC license and moral obligations won't do anything to make the news more fair -- not when there's a market on both sides of the political aisle hungering for a slant that agrees with their own.

from the subtract dept

Some terrestrial TV stations and cable stations are better at internet-ing than others. While Netflix has built an empire upon streaming ad-free shows, for instance, other services like Hulu have gone the route of a tiered structure, with a price point for streaming with ads and one for streaming without ads. One of the interesting things is seeing other traditional broadcast networks watch how these models play out and then go about offering their own. Take CBS, for instance. It's very clear that CBS is enamored with the idea of streaming its content advertising free, but likes Hulu's tiered structure better than that of Netflix.

At CBS' site, you can see that it is now offering two tiers of its "All Access" platform. The existing service is offered with "Limited Commercials", while a service that costs $4 more is labeled "Commercial Free." I'd like to focus on the commercial free offering for a moment, because it's a bold step that includes giving viewers a way to stream CBS shows "commercial free", except where there are both commercials and where CBS is choosing to call "commercials" by the term "promotional interruptions" instead.

There are some caveats to CBS’ “commercial-free” option. CBS isn’t spending much time highlighting these asterisks, but they tell you interesting things about the TV ecosystem in 2016:

-If you stream a CBS show live, when it first airs, you’ll still see ads — the same ones you’d see on conventional TV, depending on the local TV market you’re in.

-CBS says “select on-demand shows will include promotional interruptions.” I talked to a CBS rep for a translation: The “promotional interruptions” will be brief, but un-skippable, promos — 15 seconds at most, and no more than two promos per half-hour — for other CBS shows. They’ll show up in about 10 percent of CBS’ episodes, and about 20 percent of its titles — generally its newer shows. That’s because CBS has sold on-demand rights to some of those shows to subscription services like Amazon or Netflix, and in some cases those services have exclusive rights to an ad-free “window” for those shows.

It appears CBS has been taking its cues from the mobile network industry, which absolutely loves calling its plans "unlimited", even though they are very much limited. In this case, the streaming service is "advertising free", except for all the ads on live shows and all of the promotional interruptions on streaming the older library. I had once thought that coming up with new business models to appeal to the public was hard. Turns out it's not! You just have to call one thing by another name and insist the entire world play make believe!

The folks over at Recode appear to think that CBS doesn't even really want people to use this option.

The big picture is that CBS is still very much in the advertising business, and will be for a very long time. So it is presumably betting that the ad-free option will only be interesting to a subset of its All Access subscribers, who are a small subset of its total audience.

It's breathtaking in its cynicism. CBS decides to claim a service is something it isn't while hoping most customers don't use it or want it and instead use the other level of service. It's an insight into how the company sees its viewers, as little more than money-levers waiting to be pulled in the right order to extract the maximum amount of revenue, regardless of whether it has to engage in double-speak and obfuscation in order to do so.

We at Techdirt want to play along with CBS on this sort of thing, which is why we're proud to say that this post is offered to you vulgarity free! On an unrelated note, CBS' advertising free offering is bullshit.

from the stephen-colbert-stephen-colbert-stephen-colbert dept

For years, when Stephen Colbert was on Comedy Central, he actually would discuss intellectual property issues with surprising frequency, including taking on SOPA back when it was a thing. Perhaps this is because he has a brother who is an intellectual property lawyer (who apparently works for the Olympics, which is not very encouraging). So it's interesting to see that Colbert is now claiming that a lawyer from Comedy Central or Viacom (he's not entirely clear) has contacted CBS to say that it holds the rights to the "character" of Stephen Colbert.

If you're not at all familiar with Colbert, this will take some unpacking. For many years, Colbert hosted a TV show on Comedy Central (owned by Viacom) called The Colbert Report, in which he played a pompous/clueless TV news blowhard... also named Stephen Colbert. A big part of the conceit was that this was a character, quite different than the actual Stephen Colbert in real life. More recently, Colbert ended that show, to move to network TV to take over David Letterman's old slot, where it's now the Late Show with Stephen Colbert. Importantly, on the Late Show, Colbert insisted that he was leaving "the character" of Stephen Colbert behind and would actually be himself, Stephen Colbert. Got that?

In the last few months, however, there have been some concerns that this new network non-character Colbert wasn't performing well in the ratings -- and part of the blame placed on that was the fact that he was no longer using the character of Stephen Colbert from the Colbert Report.

“Late Show” has had trouble finding the funny. That’s not surprising, given how reliant his Comedy Central show was on the character he played: a smug, self-absorbed conservative talk host. That character is gone now, and now the hunt is on for what works with the “real Stephen.” Some of the standing bits toss off some good one-liners, including a fake confessional booth where Colbert admits to nonsensical sins. But too many set-ups fall flat. The “cold open” at the start of the show could develop into a keeper but at the moment it feels forced and ends abruptly, rather than naturally flowing into the title sequence.

Perhaps because of this, and as an attempt to boost ratings, last week at the Republican Convention, Colbert did two things -- he brought Jon Stewart on to return to the main desk to do a story on Donald Trump... and he brought back the Stephen Colbert character:

Except... according to (not a character... we think...) Colbert, some bigwig lawyer, at Viacom or Comedy Central has called up the lawyers at CBS to say they can't do that any more.

I'm almost surprised that Colbert didn't have his brother on to talk about this, but perhaps his brother is busy sending nastygrams to companies telling them they can't tweet about the Olympics. Either way, Colbert's "solution" to this issue is to say that the character of Stephen Colbert from the Colbert Report will no longer appear on his show... but instead, there will be a character named Stephen Colbert who is the other (character) Stephen Colbert's "identical twin cousin." You can see it all in the video above, which also concludes with Colbert bringing back one of his popular Colbert Report segments "The Word," which is now rebranded as "The Werd."

Of course, with Colbert, it's never entirely clear how much of what he says is serious or not, so it's possible that this is all a ploy to boost the ratings. However, usually when he does these things, they're at least based on a kernel of truth. And, if that's the case, it'll be interesting to see if the Viacom/Comedy Central lawyers take exception to this workaround. It would certainly be a fun lawsuit to see them arguing over which forms of Stephen Colbert Stephen Colbert can use...

from the don't-count-your-eggs dept

We've been covering the still going lawsuit by CBS and Paramount against Axanar Productions for making a crowdfunded fan film that they claim is infringing because it's looking pretty good. Things got a little weird last month when the producer of the latest Star Trek film, JJ Abrams, and its director, Justin Lin, basically leaked a bit of news saying that after they had gone to Paramount, the studio was going to end the lawsuit. At the time, Paramount said that it was in "settlement discussions" and that it was "also working on a set of fan film guidelines."

We pointed out that we were concerned about what those guidelines might entail, and worried that they would undermine fair use. In the meantime, as settlement talks continued, the case moved forward. I'm still a little surprised that the two sides didn't ask the court for more time to continue settlement talks, as that's not that uncommon, and it's something that a judge often is willing to grant if it looks like the two sides in a dispute can come to an agreement. But, without that, the case has continued to move forward with ongoing filings from each side.

The CBS "Guidelines" for Fan Films basically make it impossible for fan films to continue as they have.

The first item, for example, completely rules out Axanar's plan for a feature length fan film:

The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes.

And there's another one that's clearly targeted at Axanar:

The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees.

I don't quite see how or where that fits into fair use's rules...

Another one clearly targeted at Axanar -- which raised over a million dollars in Kickstarter and IndieGoGo crowdfunding campaigns:

CBS and Paramount Pictures do not object to limited fundraising for the creation of a fan production, whether 1 or 2 segments and consistent with these guidelines, so long as the total amount does not exceed $50,000, including all platform fees, and when the $50,000 goal is reached, all fundraising must cease.

That seems rather limiting.

Some of the other terms are more reasonable, but it seems clear that these guidelines are pretty specifically designed to cut off an Axanar style fan film, and seem to be trying to cut off a lot more than fair use almost certainly allows. While for the sake of the folks working on Axanar, I still hope that this settles amicably, it might be a lot nicer to have Axanar be able to win a fair use claim in court over this.

from the bye-bye-public-domain dept

Whoo boy. Did not expect this one. For a while now, we've noted a variety of lawsuits over pre-1972 sound recordings, due to a quirk in copyright law. You see, for a long time, sound recordings were not covered by federal copyright at all (the compositions were, but the recordings were not). State laws did jump in to fill the gap (often in terrible ways), but in the 1970s, when the Copyright Act was updated, it finally started covering sound recordings as well... but only for songs recorded in 1972 or later. This has left all songs recorded before that in a weird state, where they're the only things still covered by a mess of confusing state copyright laws. The easy way to fix this would be to update the law to just put all such sound recordings under federal copyright law. But the RIAA has resisted this heavily, recognizing that keeping them away from federal copyright law is allowing them the ability to keep them under copyright even longer and to squeeze a lot of extra money out of music streaming companies.

Last fall, we wrote about the record labels moving on from streaming companies to instead suing CBS over its terrestrial radio operations playing pre-1972 songs as well. CBS hit back with what we considered to be a fairly bizarre defense: claiming that it wasn't actually playing any pre-1972 music, because all of the recordings it used had been remastered after 1972, and those recordings should have a new and distinct copyright from the original sound recording. As we noted at the time, an internet company called Bluebeat had tried a version of this argument years earlier only to have it shot down by the courts (though its argument ignored the whole derivative works issue).

Now, in a somewhat stunning ruling, the court has agreed with CBS that remastered works get new copyrights as derivative works of the original. You can read the full court order here. The court, correctly, notes that for a work to get a new copyright, it must show originality beyond the initial work -- and that originality "must be more than trivial."

The court relies heavily on CBS's own experts who claim that remastering involves a lot of choices by the engineer doing the remastering, as well as an audio forensics expert who insisted that by using the remastered versions, "CBS did not use any version of the sound recordings that plaintiffs claim to own." The label that's suing, ABS Entertainment, argued that remastered music is just a digital conversion of an old analog recording. ABS supplied its own expert... who apparently was completely unconvincing, mainly because his "scientific method" of analyzing the old and new songs was basically "I listened to both carefully."

CBS objects to Mr. Geluso’s testimony on the grounds that it is irrelevant, unscientific, based on
unreliable methodology, and lacks adequate foundation as expert testimony. As context for these
objections, it is worth recounting what Mr. Geluso did during his testing: Mr. Geluso examined the
sound recordings by performing waveform and spectral analysis, as well as critically listening to them –
a technique which is unexplained in Mr. Geluso’s declaration but appears to involve listening while also
paying attention... While Mr. Geluso would
“critically listen” to all of a recording, his actual scientific testing was limited to, in most instances, the
first five seconds of each recording.... Mr. Geluso’s report also includes
graphs taken from his testing software which serve as visual exhibits demonstrating his scientific testing.... However, in his deposition, Mr. Geluso could not provide an opinion as to the
similarities or differences between sound recordings based only on his own graphs, protesting that he
needed access to his full computer workstation.... Moreover,
Mr. Geluso excluded from his report results from the first test he attempted – an “industry standard”
known as phase inversion testing – which revealed differences in the first several works which Mr.
Geluso compared.... Mr. Geluso then abandoned this
methodology and did not directly disclose the results in his report.

Let this be a lesson to litigious companies: be careful who you hire as an expert. The court tossed out all of Geluso's testimony, meaning that ABS presented basically no evidence to contradict CBS's claims that remastered works are original enough to get a new copyright, making it easy to find for CBS on summary judgment. The court rejects ABS's reliance on older cases that said remastered works didn't create a new song by noting that those all involved unauthorized remastering, as opposed to this situation where the remastered versions were authorized:

Accordingly, the Court finds that on the record before it, Plaintiffs’ pre-1972 Sound Recordings
have undergone sufficient changes during the remastering process to qualify for federal copyright
protection. For example, for Ace Cannon’s “Tuff,” Dr. Begault found that the CBS version had
additional reverberation, was played in a different musical key and at a faster tempo, and differed in the
musical performance.... Additionally, many of the remastered versions included
different channel assignments and adjustments in equalization.... In the terms
identified in Circular 56, these differences between the recordings – which were explained by Mr. Inglot
and objectively measured by Dr. Begault – are not merely “mechanical changes or processes … such as a
change in format, de-clicking, and noise reduction.” ... Nor are the changes
“trivial,” as evidenced by Plaintiffs’ repeated decisions to have experienced sound engineers remaster
their works. Instead, the changes reflect “multiple kinds of creative authorship, such as adjustments of
equalization, sound editing, and channel assignment.” ...

In sum, Plaintiffs have failed to create a genuine dispute of material fact as to whether the
versions of Plaintiffs’ works performed by CBS included sufficient originality to qualify for a federal
copyright. For the 57 works reviewed by both parties’ experts, the Court finds that the changes made
during the remastering process were original within the meaning of the Copyright Act, and are thus
entitled to federal copyright protection.

ABS raised a few other potential issues, each of which the court dismisses. The most interesting to me is the claim that even if the remastered versions are new works, ABS still holds the common law pre-1972 copyright on the original that is embedded within the remastered version. But, the court points out, the law treats the two works differently, and as long as CBS is playing the post-1972 version, it's in the clear:

However, the Court disagrees with
Plaintiffs’ further conclusion that this results in CBS having infringed Plaintiffs’ copyrights. The
relevant question is whether CBS had the right to perform the remastered, post-1972 sound recordings.12/
Under federal law, CBS has the right to perform post-1972 sound recordings on terrestrial radio without
payment, and to perform them through digital platforms under a statutory compulsory license.

Now, this ruling, if it holds up under any appeal is going to have massive reverberations and implications in the world of music copyright. While the original lawsuit (as with many lawsuits over pre-1972 sound recordings) was pretty ridiculous and a blatant attempt to use legal quirks to try to squeeze extra money out of things, this ruling could upend a bunch of things in dangerous ways. First off, it's going to make a huge mess for the public domain. Record labels can now avoid public domain issues by simply "remastering" old works and getting a brand spanking new copyright that will last for another 95 years. Yes, the original work will still go into the public domain, but things are going to get difficult for the public to determine what's in the public domain and what's not. The fact that you might need to get a musicologist to analyze tracks to determine if the sound recording you have is in the public domain or subject to a brand new copyright seems like a potential disaster for the public domain. It's going to make it hellishly risky to make use of any sound recording, even if it should be in the public domain.

The court plays down this threat in a rather unconvincing footnote:

Plaintiffs also assert a policy based argument that an adverse ruling in this case will result in
potentially endless extension of copyright protections for pre-1972 Sound Recordings as they are
remastered into new formats.... Plaintiffs’ concerns are unwarranted because the Court’s
finding of copyrightable originality is based not on a mere conversion between formats, but on the
original expression added by a sound engineer during the remastering process. Such original expression
is entitled to copyright protection, regardless of whether the underlying work was fixed before or after
1972.

Yeah, but that assumes that copyright holders won't carefully make changes in the remastering process to account for this fact. And that's ridiculous, because the RIAA and its labels will do just about anything to hold onto copyrights for a longer period of time.

Second, it's going to wreak havoc on the issue of termination rights. As we've discussed in the past, under copyright law, the original creator has a universal right to reclaim the copyright from anyone it was assigned to after 35 years. This has been a massive headache for the RIAA lately, as a bunch of classic artists have started to demand their songs back. The RIAA has been trying to fight this in a number of different ways... including by arguing that remastered songs get a brand new copyright. So even though the record labels may have "lost" this case (so far), they may be thrilled in the long run, because they may have just been given a massive tool to avoid both the public domain and termination rights. Remember, this is the same RIAA, who back in 1999 had a Congressional staffer named Mitch Glazier sneak four words into a totally unrelated bill (literally) in the middle of the night, to try to exempt sound recordings from copyright termination laws (and then, months later, hired that same staffer to a job paying upwards of $500k per year -- a job he still has a decade and a half later). That kerfuffle was only discovered later and a bunch of famous musicians started screaming at Congress, leading them to repeal Glazier's sneaky change. In short: if you don't believe the RIAA will make use of this new loophole to get around termination rights, you haven't been paying any attention at all.

So, in the end, even though this case is a "loss" for the record labels who brought the case, the implications of this ruling almost certainly are a massive victory for the labels in a variety of other cases, and a huge loss for the public and for artists who were expecting to reclaim their works.